“The
debate over capital punishment has recently suggested that Texas is different
from other states in matters of capital punishment, different in meaningful
ways from the 37 other states that now have the death penalty. States
with capital punishment have a wide choice among procedures, choices that
can be made fairly free of constitutional restraint. Today I want to talk
about these perceived differences and why they should be studied.”

Thus began
the Distinguished Jurist Lecture delivered by the Honorable Patrick E.
Higginbotham on March 6, 2001 at the Law School. Presented to an audience
that included faculty from the Law School and the University, students,
and esteemed jurists, Judge Higginbotham shaped his talk with two overarching
questions.

The first,
addressing the “shallow” observation of whether the difference between
California and Texas is that California wants to keep the death penalty
but lacks the political will to execute a prisoner, or whether, in fact,
“the political will is not so conveniently dichotomized but is rather
being frustrated by procedures and structures that hamstring the system.”
Second, Judge Higginbotham questioned whether there is common ground between
forces opposing and the forces supporting the death penalty. He stated
that “on that common ground we must locate the procedures and practices
that offer greater fairness in the system without frustrating it.” Citing
statistics in California, Virginia and Pennsylvania, Judge Higginbotham
spoke of how Texas compared and what the government and courts of the
state have undertaken to improve the delivery of legal services to those
charged with capital crimes.

Judge Higginbotham
was appointed to the United States District Court, Northern District of
Texas, in 1975 and in 1982 to the United States Court of Appeals, Fifth
Circuit. He serves as a faculty member of the Federal Judicial Center
and is Adjunct Professor of Constitutional Law at SMU Law School where
he teaches courses in constitutional law and federal courts.